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This Defense Stinks

WC’s Grandpa Walt taught WC that my freedom to swing my arm was limited to just less than the distance to my neighbor’s nose. He also taught WC tht cheaters never prosper. Grandpa Walt died too young too long ago, but he would be mightily pleased with Friday’s Alaska Supreme Court decision in Lander v. Riddle. It proved both his points in a single decision.

Robert Riddle is the latest owner of Fairbanks Pumping and Thawing. He was unhappy paying Golden Heart Utilities eleven cents a gallon to take the sewage he pumped from septic tanks around Fairbanks. Golden Heart treated the sewage as the law required. Mind you, this is a pass-through cost, the same for all his competitors. But Riddle thought he saw a way to avoid paying Golden Heart. He bought property out on Eielson Farm Road, bulldozed in some make shift barriers, and dumped the sewage in the lagoons. To avoid the wrath of the Department of Environmental Conservation, he bought some farm equipment and cleared a little land and called it a “farm.” To get the Borough and Division of Agriculture permits, he lied like a rug. Because Alaska’s Right to Farm law protects agricultural producers from nuisance claims brought by people who move to traditionally agricultural areas as the result of urbanization.

Pretty sweet for Riddle. He nets another eleven cents per gallon. Pure profit. In fact, it worked so well he let Bigfoot Pumping and Thawing dump its sewage in his lagoons for just five cents a gallon. Bigfoot has a big presence in the Fairbanks septic tank business: Riddle accepted more than 2.5 to 3.6 million gallons of sewage a year from Bigfoot. That’s another couple hundred thousand in pure profit for Riddle.

The thing about having millions of gallons of sewage laying there in the open air is that it stinks something awful. When neighbor Eric Lanser complained to the ADEC, they told him the Right to Farm Law protected Riddle’s actions. Lanser was annoyed enough that he took Riddle to court.

But to claim the protection of the Right to Farm Law you have to actually be a farmer. Riddle never sold a nickel’s worth of farmed products. Riddle was in the sewage storage business, and tried to use the Right to Farm Act to avoid complying with the laws regulating sewage disposal and the law of private nuisance. The Alaska Supreme Court didn’t buy Riddle’s defense:

The Act allows agricultural facilities to expand their existing agricultural operations without incurring new liabilities. It does not provide a means to immunize an existing, nonagricultural nuisance. Because Riddle began spreading septage from the lagoons on his fields only after the lagoons became a nuisance, the Right to Farm Act does not protect him.

If you build a house next to a cattle feed lot, you can’t complain about the stink. The Right to Farm Law, rightly or wrongly, says that if the feed lot is expanded and the smells get worse, you still can’t complain. But if your neighbor builds a sewage lagoon next to your house, well, as Grandpa Walt would say, you’ve swung your arm into someone’s nose and you have to live with the consequences.

WC could make a lot of bad jokes about this case – beyond the stinky pun in the post title – but there are issues the trial court never reached that bear on Riddle’s scheme. At trial witnesses confirmed that applying human waste to soil is an accepted farming practice and has long-term beneficial impacts on soil. It’s also a terrific way to spread disease and contaminate water tables and surface water flows. Just because you’ve done something for a long time doesn’t mean it is smart, safe or sensible. There’s a reason we treat sewage before it is dumped into rivers and the ocean. The EPA requires treatment before septage can be spread on farm land.

Human waste doesn’t just smell bad; it is dangerous. There’s a reason it is regulated. That’s a good argument for interpreting exceptions to the Right to Farm Law involving human waste as narrowly as possible.

Riddle was represented by attorney Bill Satterberg. But you probably guessed that.